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SHERRY v. PROTECTION

August 6, 1998

JOHN SHERRY, Plaintiff,
v.
PROTECTION, INC., an Illinois corporation, AFFILIATED PROTECTIVE SERVICES, INC., an Illinois corporation, and CHARLES T. LAWS, Defendants.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is a motion filed by plaintiff John Sherry for an award of attorney's fees in his favor in the amount of $ 17,036.50 pursuant to Federal Rule of Civil Procedure 54(d). For the reasons that follow, the court grants plaintiff's motion for an award of attorney's fees in the amount of $ 12,851.50.

 I. BACKGROUND

 On July 27, 1997, plaintiff John Sherry filed a two-count complaint against defendants, Protection, Inc., an Illinois corporation, Affiliated Protective Services, Inc., an Illinois corporation, and Charles T. Law. Count I alleged violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. ┬ž 2611, et seq. Count II alleged intentional infliction of emotional distress.

 On March 23, 1998, defendants made an offer of judgment to plaintiff in the amount of $ 5,000 "plus reasonable and properly recoverable costs and reasonable attorneys' fees, under applicable rules, accrued through the date of acceptance of this offer." On March 25, 1998, Sherry's attorney sent defendants' attorney a document entitled "Notice of Acceptance of Offer of Judgment" which stated that the "plaintiff shall be entitled to recover his attorneys' fees in preparation of his Petition for Attorneys' Fees and Costs to be filed with the Clerk of the Court." According to the affidavit of defendants' attorney, Peter Silverman, he informed Sherry's attorney that her Notice was not an acceptance of the offer of judgment because the Notice changed the terms of the offer. On April 1 1998, Sherry's attorney filed with the Clerk of the Court a Notice of Acceptance of Offer of Judgment in the amount of $ 5,000 "plus reasonable and properly recoverable costs and reasonable attorneys' fees accrued through the date of acceptance of this Offer."

 II. DISCUSSION

 Sherry has filed a motion for award of attorney's fees in the amount of $ 17,036.50 for legal services he received from June 17, 1997 through July 1, 1998. Defendants have raised four arguments in their memorandum opposing Sherry's motion for award of attorney's fees and they also request that the court conduct an evidentiary hearing on this issue. The court will address each of the defendants' arguments in turn.

 A. Attorney's fees

 Defendants first argue that the court should not award attorney's fees in this case because: (1) plaintiff's counsel acted in bad faith; (2) plaintiff has not achieved enough success in the underlying suit to be entitled to fees; and (3) the settlement of this case was based upon the nuisance value of the suit and not the merits of plaintiff's claim. For the reasons outlined below, the court rejects these arguments.

 1. Plaintiff's counsel did not act in bad faith

 Defendants argue that Sherry's counsel has prolonged resolution of this case in order to generate additional legal fees. The court finds that this argument fails for the reasons outlined below.

 After Sherry filed his complaint, defendants submitted to the court a motion to dismiss and a motion for summary judgment. Most of Sherry's counsel's time was spent responding to these motions, both of which were won by the plaintiff. The court recognizes that defendants' counsel has a duty to zealously represent their client. However, defendants' counsel cannot reasonably argue that the plaintiff's counsel prolonged the resolution of this case by responding to defendants' motions.

 Defendants further argue that Sherry's counsel has taken an unreasonable settlement position throughout the litigation by refusing to discuss any settlement figure less than $ 50,000. The defendants did not offer Sherry any money to settle this case until March 2, 1998, eight months after the complaint was filed and after Sherry's counsel had spent much of her time litigating this case. Since the defendants have failed to ...


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